MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 21 2015, 6:51 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David T.A. Mattingly Gregory F. Zoeller Mattingly Legal, LLC Attorney General of Indiana Lafayette, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Andre Lavon Brown, aka Andre December 21, 2015 Brown, Jr., Court of Appeals Case No. Appellant-Defendant, 79A02-1504-CR-251 Appeal from the Tippecanoe v. Superior Court The Honorable Randy J. Williams, State of Indiana, Judge Appellee-Plaintiff. Trial Court Cause No. 79D01-1408-F3-1
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 1 of 16 [1] Andre Lavon Brown, aka, Andre Brown, Jr., appeals his conviction and
sentence for robbery as a level 3 felony. Brown raises two issues which we
revise and restate as:
I. Whether the evidence is sufficient to sustain his conviction for robbery as a level 3 felony; and
II. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.
We affirm.
Facts and Procedural History
[2] In August 2014, Brown, Charles Jenkins, and Tyler Chandler stayed with Iesha
Johnson in her apartment at 2314 Yeager Road. The men seemed to stop
talking or changed the subject whenever Johnson entered the room, and she
thought that they probably did so because they were talking about her. Johnson
observed the men carrying a bag with a string that they had with them
everywhere.
[3] On August 5, 2014, Chandler and Brown went to a gun store and asked Robert
Allen Robbins, the owner, if he would be interested in buying a firearm.
Chandler and Brown left and returned with Jenkins. Chandler removed a
twenty-two caliber Ruger “single six” revolver with a twelve-inch barrel from a
bag. Transcript at 97. Robbins recognized the gun as being very unique, but
was not interested because there were several deep indentations on the serial
numbers. Chandler left the store, and Brown then took the gun and left the
store. Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 2 of 16 [4] On August 8, 2014, between 2:00 and 3:00 a.m., Chandler entered a Circle K in
West Lafayette and asked Ellen Campbell, a cashier, for a fifty dollar bill in
exchange for two twenty dollar bills and a ten dollar bill. Shortly after 3:00
a.m., Campbell was stacking cigarettes, turned around, and saw a short man
wearing a mask holding an old revolver with a long barrel, and a taller man
wearing a mask, white Nike shoes with black trim, and gray sweatpants. The
shorter man pointed the gun at Campbell and asked her to open the safe. After
Campbell said that she did not have the code or the key, the shorter man asked
her to open the register. The shorter man grabbed a bag and told her to put the
cash in the bag. The taller man “came around and got cigarettes and swishers
and then he went and got cigarettes.” Id. at 26. Taken were Newport cigarettes
and White Owl cigarillos. The shorter man then grabbed Campbell’s phone,
and the two men ran southbound out of the building. Campbell then called 911
and stated that the subjects were two black males.
[5] When police arrived, Campbell was extremely upset, crying, shaking, and
terrified that the men were going to return. The police attempted to ping
Campbell’s phone and found that it had been turned off so they were unable to
locate it.
[6] Later that morning, Johnson observed that Brown had a white Samsung phone.
Brown told Johnson that he found it, that he thought it was dropped, and that
he wanted to sell it. At some point that same day, Brown and two others went
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 3 of 16 to the home of Samuel Booker and sold a black revolver to a man for about
ninety dollars.1
[7] At about 11:00 a.m., Chandler and Brown entered the gun store. Brown was
wearing gray pants and white shoes with black trim. Chandler provided
Robbins an address that did not match his identification, and Chandler and
Brown left the store and returned around 4:19 p.m. at which point Chandler
filled out an application to purchase a firearm at the gun store. The address on
Chandler’s identification was 2314 Yeager Road.
[8] Slightly after 6:00 p.m. that day, West Lafayette Police Officer Stacon Wiete
ended his shift after viewing a photograph of an unmasked individual from the
surveillance video of the Circle K gas station, was driving home, and
recognized a person walking in front of his vehicle as the person in the
photograph. Officer Wiete observed the individual and two others enter a
building at 2314 Yeager Road, and contacted the duty shift commander.
[9] On August 9, 2014, Robbins, the owner of the gun store, contacted police after
seeing a newspaper article regarding the robbery at the Circle K, and noting that
a long-barreled revolver that he had previously seen was used in the robbery.
West Lafayette Police Sergeant Jonathan Eager met with Robbins and showed
1 During direct examination, Booker indicated that Brown and two others came over on August 8, 2014, and sold a gun. Following a question from the jury of what date the gun was sold, Booker answered: “I don’t even know the date to be truthful.” Transcript at 296. During redirect examination, the prosecutor asked Booker: “[D]o you know if it was during August of 2014?” Id. at 297. Booker answered: “It was like around August.” Id.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 4 of 16 him still images of the weapon used in the robbery at the Circle K. The police
retrieved video from Robbins’s surveillance cameras, as well as the firearms
transaction report with the address of 2314 Yeager Road completed by
Chandler. Sergeant Eager determined that the individual that entered the
Circle K approximately an hour prior to the robbery appeared to be the same
person on the video at the gun store. He also noticed that the individual with
that person in the gun store was wearing white shoes with black trim and later
determined that that person was Brown.
[10] That same day, Officer Wiete saw a BMV photograph of a subject, confirmed
that it was of the person he had observed the previous day, and identified him
as Chandler. At 10:45 p.m., West Lafayette Patrol Sergeant Kevin Flyn made a
traffic stop of a minivan that was under surveillance and identified the driver as
Johnson and the passengers as Chandler, Jenkins, and Brown. Officers
transported the three men to the county jail and determined that Chandler’s
shoe size was ten and that Jenkins’s shoe size was eleven. At the jail, West
Lafayette Police Officer Jonathan Morgan asked Brown what size shoes he
wore, and Brown said that he wore size eleven, but when Brown removed his
shoes, Officer Morgan noticed that they were a size twelve.
[11] Meanwhile, the police took Johnson to the police station and then back to her
apartment and executed a search warrant. The police recovered a gray
sweatshirt, size twelve white and black Nike tennis shoes, size eleven gray and
white Nike shoes, a black and red “dream chasers” hoodie, gray sweatpants
with a cargo pocket near the thigh, a twenty-two caliber shell casing, Newport
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 5 of 16 cigarettes, two cell phones, one of which was a white Samsung phone later
determined to belong to Campbell, a Circle K plastic bag containing opened
cigarillos or cigars, and Chandler’s wallet. Id. at 140. The Nike shoes appeared
to be the same shoes in both the video at the gun store and the armed robbery at
the Circle K worn by the taller man. A shirt also discovered by police appeared
to be the same shirt worn by one of the men that was seen in the video of the
armed robbery.
[12] On August 10, 2014, Sergeant Eager reviewed a statement of rights form with
Brown, Brown signed the form, and Sergeant Eager interviewed him. He
initially denied knowing about the robbery, but later admitted that he had
knowledge of it and that Marqueese Huckabee and an unknown male had
committed it. When asked about the white Samsung phone that belonged to
Campbell, Brown said that he found it in a field or in the grass outside of 2314
Yeager Road and that the screen was flashing. He admitted to wearing the gray
sweatpants and that the shoes belonged to him and stated that an unknown
individual requested his shoes and clothing. Sergeant Eager later interviewed
Huckabee and did not believe that he was involved in the robbery.
[13] On August 14, 2014, the State charged Brown, Chandler, and Jenkins with
Count I, conspiracy to commit robbery as a level 3 felony; Count II, robbery as
a level 3 felony; Count III, theft as a class A misdemeanor; and Count IV, theft
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 6 of 16 as a class A misdemeanor.2 On January 7, 2015, the State filed a motion to try
Brown and Jenkins together, and the court later granted the motion.
[14] In February 2015, the court held a jury trial. Campbell testified that she would
be unable to identify the men that robbed her because they wore masks.
Sergeant Eager testified that he interviewed Brown, that Brown initially denied
knowing anything about the robbery, and that after he relayed certain facts to
Brown, “that’s when the story came out that it was these other people oh, and
they were wearing my clothes.” Id. at 235. Johnson testified that Brown wore
the sweatpants recovered during the search and that she never saw anyone else
wear those sweatpants. She also testified that she did not own a gun in August
2014 and that she had no reason to have bullets in her apartment.
[15] The jury found Brown guilty as charged. The court found that Counts I, III,
and IV merged into Count II, and entered judgment of conviction on Count II,
robbery as a level 3 felony. On March 30, 2015, the court held a sentencing
hearing. At the hearing, Brown stated:
I want to take ownership to the crime. I feel, I feel kind of bad for it. I wish the victim was here, I could speak to her personally. Sorry to the State. Sorry, you know, having everybody here in this courtroom here today. Sorry, you know. I don’t really know
2 The State initially charged Brown as “Andre Lavon Brown” and later amended the charging information to read “Andre Lavon Brown AKA Andre Brown, Jr.” Appellant’s Appendix at 64.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 7 of 16 what else to say. I feel bad about the situation. I can’t take back the situation.
Id. at 377.
[16] The court found as mitigators that Brown took advantage of programs available
to him while he had been in the Tippecanoe County Jail and obtained his high
school equivalency diploma, that incarceration would cause an undue hardship
on his dependent child, and that Brown had taken responsibility for his actions.
The court found Brown’s criminal history, the fact that he was recently off
probation, that he was subject to a conditional discharge out of Lake County,
and that he had a substance abuse history as aggravators. Brown was sentenced
to ten years with eight years executed at the Department of Correction and two
years suspended to supervised probation.
Discussion
I.
[17] The first issue is whether the evidence is sufficient to sustain Brown’s
conviction for robbery as a level 3 felony. Brown argues that the evidence is
insufficient because Campbell could not identify him as one of the robbers and
the evidence against him was entirely circumstantial. He argues that
“[a]ssuming arguendo that there was sufficient evidence presented to
demonstrate [he] was one of the perpetrators of the robbery, he was merely
present at the robbery, and mere presence is not enough to sustain a
conviction.” Appellant’s Brief at 14. The State argues that Brown’s
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 8 of 16 companionship with Chandler and Jenkins, his possession of the unique
revolver used in the robbery, his physical appearance and clothing, his sale of
the revolver after the robbery, and the recovered stolen items support his
conviction.
[18] When reviewing claims of insufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,
817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. We will affirm the
conviction if there exists evidence of probative value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. Id.
[19] Elements of offenses and identity may be established entirely by circumstantial
evidence and the logical inferences drawn therefrom. Bustamante v. State, 557
N.E.2d 1313, 1317 (Ind. 1990). Identification testimony need not necessarily
be unequivocal to sustain a conviction. Heeter v. State, 661 N.E.2d 612, 616
(Ind. Ct. App. 1996). Inconsistencies in identification testimony impact only
the weight of that testimony, because it is the jury’s task to weigh the evidence
and determine the credibility of the witnesses. Gleaves v. State, 859 N.E.2d 766,
770 (Ind. Ct. App. 2007) (citing Badelle v. State, 754 N.E.2d 510 (Ind. Ct. App.
2001), trans. denied). As with other sufficiency matters, we will not weigh the
evidence or resolve questions of credibility when determining whether the
identification evidence is sufficient to sustain a conviction. Heeter, 661 N.E.2d
at 616. Rather, we examine the evidence and the reasonable inferences
therefrom that support the verdict. Id.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 9 of 16 [20] Ind. Code § 35-42-5-1 governs the offense of robbery as a level 3 felony and
provides that “[a] person who knowingly or intentionally takes property from
another person or from the presence of another person: (1) by using or
threatening the use of force on any person; or (2) by putting any person in fear;
commits robbery . . . .” “[T]he offense is a Level 3 felony if it is committed
while armed with a deadly weapon . . . .” Ind. Code § 35-42-5-1. The State
charged that Brown, Jenkins, and Chandler
did knowingly or intentionally take property, to wit: U.S. Currency, merchandise, a cell phone, or other property, from another person or the presence of another person, to wit: Ellen Campbell, by using or threatening the use of force or by putting the said Ellen Campbell in fear, committed while armed with a deadly weapon, to wit: a handgun . . . .
Appellant’s Appendix at 20.
[21] Brown concedes that where two people act in concert to commit a crime, each
may be charged as a principal in all acts committed by the accomplice in the
accomplishment of the crime. Regarding accomplice liability, Ind. Code § 35-
41-2-4 provides that “[a] person who knowingly or intentionally aids, induces,
or causes another person to commit an offense commits that offense . . . .”
“‘[A]n accomplice is criminally responsible for all acts committed by a
confederate which are a probable and natural consequence’ of their concerted
action.” McGee v. State, 699 N.E.2d 264, 265 (Ind. 1998) (quoting Vance v. State,
620 N.E.2d 687, 690 (Ind. 1993)). It is not necessary that a defendant
participate in every element of a crime to be convicted of that crime under a
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 10 of 16 theory of accomplice liability. Bruno v. State, 774 N.E.2d 880, 882 (Ind. 2002),
reh’g denied. In determining whether there was sufficient evidence for purposes
of accomplice liability, we consider such factors as: (1) presence at the scene of
the crime; (2) companionship with another at the scene of the crime; (3) failure
to oppose commission of the crime; and (4) course of conduct before, during,
and after occurrence of the crime. Id. A defendant’s mere presence at the crime
scene, or lack of opposition to a crime, standing alone, is insufficient to
establish accomplice liability. Tobar v. State, 740 N.E.2d 109, 112 (Ind. 2000).
[22] The record reveals that on August 8, 2014, between 2:00 and 3:00 a.m.,
Chandler, who was staying with Brown in Johnson’s apartment, entered the
Circle K in West Lafayette and asked Campbell, the cashier, for a fifty dollar
bill in exchange for two twenty dollar bills and a ten dollar bill. Shortly after
3:00 a.m., two men entered the Circle K, and one of the men pointed a gun at
Campbell. Detective Greene described Brown as being “around six foot, six
foot one, a hundred and sixty pounds” in August 2014. Transcript at 272. The
jury was able to compare the descriptions of Brown, its view of Brown, and the
persons on the surveillance video.
[23] Further, Brown was at the gun store with the gun with the long twelve inch
barrel and left the gun store with the gun on August 5th. Robbins described the
gun as being “very unique.” Id. at 97. He also testified that, as a gun store
owner, he saw a hundred guns per week and had seen only two of the particular
kind of gun in Brown’s possession. A similar gun was later used to commit the
robbery.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 11 of 16 [24] The police discovered stolen items in the apartment where Brown had been
staying. Specifically, they discovered Campbell’s phone, Newport cigarettes,
cigarillos, and a Circle K bag. The police also discovered twenty-two caliber
rounds which were the same caliber as the weapon used during the robbery.
[25] The police also discovered certain shoes and clothing in the apartment. The
police recovered a pair of gray sweatpants with a cargo pocket which Detective
Greene testified he believed were worn by the second suspect at the robbery.
Johnson testified that Brown wore the sweatpants recovered during the search
and that she never saw anyone else wear those sweatpants. Sergeant Eager
testified that the shoes recovered from Johnson’s apartment appeared to be the
same shoes and clothes in the video recovered from the gun store and the Circle
K. The sizes of the shoes recovered from Johnson’s apartment matched the
sizes of the shoes that Jenkins and Brown were wearing when they were taken
to the jail. Again, the jury was able to compare the shoes and clothing with the
shoes and clothing worn in the surveillance videos. The jury as fact-finder
reasonably could have concluded that Brown was the taller man in the Circle K
surveillance video.
[26] To the extent that Brown asserts that he was merely present at the Circle K or
acquiesced in the other man’s actions, the record reveals that both men wore
masks, that the taller man wearing Brown’s shoes and sweatpants “came
around and got cigarettes and swishers,” and that both men ran out of the
building. Transcript at 26. Based upon the record, we conclude that the State
presented evidence of a probative nature from which a reasonable trier of fact
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 12 of 16 could have found Brown guilty beyond a reasonable doubt of robbery as a level
3 felony.
II.
[27] The next issue is whether Brown’s sentence is inappropriate in light of the
nature of the offense and the character of the offender. Ind. Appellate Rule
7(B) provides that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Under this rule, the burden is on the defendant to persuade the
appellate court that his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[28] Brown argues that he did not appear to make any demands or threats toward
the clerk and that he was not the main aggressor. He argues that he has a good
history of working and that his criminal history is not violent.
[29] Our review of the nature of the offense reveals that Brown and another man
entered the Circle K wearing masks shortly after 3:00 a.m., and that the shorter
man pointed the gun at Campbell and asked her to open the safe, then asked
her to open the register, grabbed a bag, and told her to put the cash in the bag.
Brown took cigarettes and swishers. The shorter man grabbed Campbell’s
phone, and the two men ran southbound out of the building.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 13 of 16 [30] Our review of the character of the offender reveals that Brown, born December
17, 1991, was charged with dealing in marijuana and possession of marijuana
as class A misdemeanors in 2012. He was subject to a conditional discharge for
one year on the dealing charge, and the case was pending at the time the
presentence investigation report (“PSI”) was completed. In 2012, the State
charged Brown with minor consumption as a class C misdemeanor, but the
case was dismissed. At some point, he was charged with operating while never
receiving a license as a class C misdemeanor related to an alleged offense in
2012, but the case was dismissed. In 2013, he was convicted of interference
with reporting of a crime as a class A misdemeanor. That same year, Brown
was charged with carrying a handgun without a license as a class A
misdemeanor, and the case was pending at the time of the PSI.
[31] Brown reported having one child who resides with her mother in Hammond,
Indiana, and denied being court-ordered to pay child support. He completed
the tenth grade and was suspended and expelled for fighting. In 2014, he
obtained his high school equivalency diploma while in the county jail.
[32] Beginning in September 2009, Brown worked as a cook until he quit in June
2010. He worked from April to August 2011 in assembly but was fired due to
“points.” Appellant’s Appendix at 125. He worked at Taco Bell between April
2012 and July 2012 and was terminated due to “no call no show.” Id. He
worked at McDonalds between January and December 2013, and at Wal-Mart
between October 2013 and June 2014, but was terminated due to too many
“points.” Id.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 14 of 16 [33] Brown reported first consuming alcohol at the age of fifteen, consuming one
bottle of hard liquor per weekend between the ages of eighteen and twenty-one,
first using drugs at the age of sixteen, using marijuana three times per day
between the ages of sixteen and seventeen, and using marijuana all day between
the ages of seventeen and twenty-one. He reported completing six months of
outpatient treatment at Tricity in 2009. His overall risk assessment score puts
him in the high risk to reoffend category.
[34] After due consideration of the trial court’s decision, we cannot say that the
sentence of ten years with eight years executed and two years suspended to
probation is inappropriate in light of the nature of the offense and the character
of the offender.3
Conclusion
[35] For the foregoing reasons, we affirm Brown’s conviction and sentence.
[36] Affirmed.
3 At one point Brown argues: “Is Appellant really the worst of the worst, justifying an aggravated sentence of ten (10) years, with eight (8) years executed in the Department of Corrections? Criminal justice in this State is founded on the principle of reformation, and not of vindictive justice. Ind. Const. Art. 18.” Appellant’s Brief at 21. To the extent Brown suggests that his sentence violates Article 1, Section 18 of the Indiana Constitution, which provides that “[t]he penal code shall be founded on the principles of reformation, and not of vindictive justice,” we note that the Indiana Supreme Court has held that “particularized, individual applications are not reviewable under Article 1, Section 18 because Section 18 applies to the penal code as a whole and does not protect fact-specific challenges.” Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind. 1998), reh’g denied. To the extent Brown suggests that he received the maximum sentence, we note that Ind. Code § 35- 50-2-5 provides that “[a] person who commits a Level 3 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years.” Thus, Brown did not receive the maximum sentence. Further, a portion of the sentence was suspended to probation.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 15 of 16 Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-251 | December 21, 2015 Page 16 of 16